Notice of Intention to Take an Easement for the Waimea Community Dam Project—Tasman District
Notice is hereby given that the Tasman District Council (“Council”) proposes to take, under the Public Works Act 1981, an easement in gross for a right of way, right to convey electricity, computer media and telecommunications (“easement”) over the land described in the Schedule hereto.
The easement is required for water augmentation and irrigation purposes for the Waimea Community Dam Project (“project”). More particularly, the easement is required over the land described in the First Schedule to this notice (“servient land”) and containing the rights and powers set out in Schedule 4 to the Land Transfer Regulations 2002 (“Regulations”) except as varied by the terms set out in the Second Schedule to this notice
The registered proprietor of the servient land and those persons with a registered interest in it have been served with notice of the Council’s intention to take the easement and advised of their right to object.
Any other person having the right to object may send a written objection to the Registrar, Environment Court, Level 1, District Court Building, 282 Durham Street, Christchurch 8013, or by post to DX WX11113, Christchurch, within 20 working days after the date of publication of this notice.
If any objection is made in accordance with this notice, a public hearing will be held with the right of the objector to appear and be heard personally unless the objector otherwise requires, and each objector will be informed of the time and place of the hearing.
Any person requiring further information in respect of this advice should contact Heather Bryant, The Property Group Limited, 4 Akersten Street, Port Nelson, Nelson 7010. Postal Address: PO Box 1551, Nelson 7040. Telephone: (03) 546 3258.
That part of Section 6 Block II Rintoul Survey District (Part Computer Freehold Register NL119/146); shown as “F” on DP 350533.
That part of Section 5 Block II Rintoul Survey District (Part Computer Freehold Register NL39/32); shown as “G” on DP 350533 and “A” on DP 454190.
Variation of Easement Terms
1. Definitions
1.1 In addition to the definitions contained in clause 1 of the Regulations, unless the context otherwise requires:
easement facility in subclause (c) of the definition in clause 1 of the Regulations includes roads, tracks bridges, culverts, drains and other structures providing access and egress on the land described as the stipulated area.
grantee under the definition in clause 1 of the Regulations includes the Council.
grantor under the definition in clause 1 of the Regulations includes the owner of the servient land.
working day has the meaning ascribed to it under the Public Works Act 1981.
2. Right of Way
2.1 In addition to clause 12(2) of the Regulations, the Council shall, immediately after passing through any gates on the servient land, close such of them as were closed and lock such of them as were locked.
2.2 In addition to clause 12(2) of the Regulations, the Council shall take all full and proper precautions for guarding against any danger (including, but without limitation, fire, physical damage or disease) on the servient land, or to any trees and forest produce on the servient land and, in particular, shall (without limiting the Council’s obligations pursuant to this clause 2.2):
2.2.1 comply strictly with all reasonable conditions including any Health or Safety Induction and Compliance requirements that may be imposed from time to time by any lawful authority;
2.2.2 not use or operate any vehicle or machinery unless it is provided with safe and sufficient means of preventing the escape of sparks or flames;
2.2.3 comply with any Construction Traffic Management Plan implemented under the Resource Consent conditions for the project which shall include provisions granting priority to forestry traffic; and
2.2.4 use the easement facility only for purposes associated with the project and for water quality monitoring purposes.
2.3 In addition to clause 12(5) of the Regulations, the Council shall, at its cost, repair any roads, tracks, fences, gates, drains, buildings or other structures on the servient land that are damaged by the Council, or by the exercise of the rights under these easement terms.
2.4 For the purposes of the right of way, clause 11 of the Regulations is deleted and substituted as follows:
“11(1) The cost of construction and upgrading of the right of way for the project shall be borne by the Council and thereafter the costs of maintenance, repair and renewal of the right of way shall be borne by the parties for the time being entitled to use, and actually using the same, in such shares and proportions as may be fair and reasonable having regard to the use and benefit of the easement facility derived by such parties provided however that if the easement facility shall reach such a state of disrepair or be damaged through abnormal use or wear by any of the parties entitled to use, and actually using, the same, or any of their contractors, employees or invitees, then in such case the party or parties by whose action or by the action of whose contractors, employees or invitees, such damage or state of disrepair was occasioned shall be solely liable to restore and repair such damage.”
3. Rights and Powers Implied in all Classes of Easements
3.1 The general rights set out in clause 10 of the Regulations are amended by inserting the following at the end of paragraph 10(1)(b):
“provided that all pipes, cables, wires, conduits or other parts of the easement facility relating to the easements to convey electricity, telecommunications and computer media (where appropriate) shall be installed underground at an appropriate depth beneath the surface of the land. The costs associated with laying, installing and constructing the easement facility shall be borne solely by the Council.”
3.2 The provisions of clause 11 of the Regulations (as it relates to easements other than the right of way easement) are modified by deleting paragraph 11(6) and inserting the following at the end of paragraph 11(5):
“provided that the owner of the servient land shall not be responsible for repair or maintenance of damage to the easement facility caused by logging activities on the servient land.”
4. Disputes
4.1 The provisions of clause 14 of the Regulations are modified by deleting paragraphs 14(a)–(c) and inserting the following:
“If any dispute or difference arises in any way out of or in connection with the easement the parties agree to discuss the matter fully in the spirit of goodwill and cooperation with a view to reaching a resolution for the purposes of which either party may require the other to enter into mediation in the manner adopted by LEADR or an equivalent facility for alternative dispute resolution available in New Zealand. If the parties cannot resolve any such dispute or difference and such dispute cannot be resolved through mediation, either party may require the matter to be referred to arbitration on the following terms:
(a) the arbitrator is to be jointly agreed upon by the parties;
(b) if the parties fail to agree on an arbitrator within seven working days of the issue being submitted to them any party may require the President of the Nelson District Law Society to nominate an arbitrator and that nomination will bind the parties;
(c) the reference is to arbitration under the Arbitration Act 1996;
(d) the arbitration decision is final and binding on and may include;
(i) an order for costs;
(ii) an order for enforcement; or
(iii) interest on monies payable.”
5. Conflict
5.1 In the event a conflict exists between the provisions of the Regulations and the modifications in this notice, the modifications shall prevail.
The land is located at Lee Valley.
Dated at Richmond this 16th day of March 2017.
LINDSAY McKENZIE, Chief Executive, Tasman District Council.
(LINZ CPC/2005/10754)